Tag: torture

During yesterday’s Senate Select Committee on Intelligence (SSCI) confirmation hearing on Gina Haspel’s nomination to become director of the CIA, I noted on Twitter that the Army and the CIA had literally walked away from the lessons and successes on detainee/POW interrogations learned during the 1991 Persian Gulf War. That prompted responses like this:

Fair critique or missing my point?

I agree with Beale that the circumstances of the capture of Iraqi soldiers and officers in the 1991 Gulf War were different than the rendition, detention, and interrogation (RDI) program run by the CIA, and the people (actual terrorists or innocents) swept up in it. But the notion that one group of captives (cooperative, captured Iraqi general officers) should be subjected to one standard while another group (uncooperative, captured alleged/actual terrorists) should be subjected to a different, violent, and brutal standard is wrong–on moral, legal, and effectiveness grounds.

As Senator (and former tortured POW) John McCain (R-AZ) noted in 2014 when the SSCI Torture Report summary was released:

But in the end, torture’s failure to serve its intended purpose isn’t the main reason to oppose its use. I have often said, and will always maintain, that this question isn’t about our enemies; it’s about us. It’s about who we were, who we are and who we aspire to be. It’s about how we represent ourselves to the world.

The other refrain we’ve heard in the debate over Haspel’s nomination is the same one we’ve heard from torture proponents (like President Trump), namely that torture works. Let’s take another look at what the SSCI torture report summary had to say about the difference in results between the FBI and CIA interrogators when dealing with an alleged or actual “dedicated jihadist” that Mr. Beale describes. From p. 208 of that report:

As anyone who knows my work understands, I have lots of problems with the way the FBI often conducts itself. But there’s one thing that Bureau agents are generally quite good at–eliciting information, including confessions, from even hardened murderers. How much more useful, accurate information would we have received in the wake of the 9/11 attacks if the FBI had been responsible for all such interrogations? My guess is, a lot.

But there was a time when the Army itself–which has its own dark chapter on torture in the post-9/11 era–knew how to do interrogations right. It’s what I was referring to in my tweet regarding the operations of the Army’s Joint Debriefing Center (JDC) during the Gulf War. While I was still at CIA, I filed a FOIA to try to get those reports released. Not surprisingly, in 1994 the Army wasn’t keen on doing so, but I did manage to get a heavily redacted version released, which you can read here.

One reason I filed the FOIA was that as an Army Reserve officer, I was deeply proud of how my fellow soldiers had comported themselves during the campaign. This extract from the Intelligence Information Report (IIR) titled “The Gulf War: An Iraqi General Officer’s Perspective” shows why:

Doing interrogations right is about us, not our enemies. But when we do interrogations right, it only helps us. Whether that lesson has truly been learned will be revealed in the Senate floor vote on Haspel’s nomination.

On May 9, CIA Deputy Director Gina Haspel will get her chance to shape–or reshape–the narrative surrounding one particular episode in her 30+ year CIA career: her time running one of the now-infamous Agency “black site” interrogation centers used in the Bush administration’s torture program. Haspel’s challenge will be in getting Senators and the public to look beyond existing media accounts about her alleged role in running the “black site” at which al Qaeda suspect Abd al-Rahim al-Nashiri was repeatedly waterboarded, and her role in carrying out the destruction of videotapes showing the gruesome sessions.

Despite the benefit of an unprecendeted (and in my view very legally questionable) CIA domestic influence operation on her behalf, Haspel has her work cut out for her. It’s unlikely that the “I was just following orders” line will do anything other than sink her nomination. If she has and claims to Senators, as former CIA Station Chief John Bennett has suggested, that she has learned the proper lessons from the episode (i.e., that torture is wrong, that she would refuse a Trump order to restart a new torture program, etc.), should she get the chance to lead the Agency? Would she actually serve as a check on Trump? On the latter question at least, I think the answer is a resounding “no.” The reason is that America’s first torture program got off the ground because lots of people in government–not just at the CIA–elected to not only go along with it, but facilitated it.

It took a pliant Secretary of State to not make waves about the “black sites” being set up and run outside the control of the local U.S. ambassadors, generally the person in charge of all U.S. government activities, programs, and relationships with the host nation. It took an eager group of lawyers in the Department of Justice’ Office of Legal Counsel (OLC) to write the opinions effectively redefining torture out of existence, thus providing a legal shield for anyone participating in the program. If there’s one issue that is more important than who is running the CIA, it is who is in charge at DoJ, and especially what kind of lawyers populate OLC. Just because the McCain-Feinstein anti-torture amendment is law does not mean the next John Yoo or Jay Bybee won’t try to redefine it for executive branch agencies charged with starting a new torture program.

In the first torture program’s aftermath, a new and untested president insisted that Americans “….look forward as opposed to looking backward” on the U.S. torture program. Because the CIA is one of the federal agencies exempted from normal Office of Personnel Management rules (i.e., CIA is an excepted service), Obama didn’t actually need to have a federal prosecutor file charges to get rid of CIA personnel involved in the torture program. He could’ve fired them himself. He didn’t, and that’s one reason why Gina Haspel now has a shot to run the CIA.

To recap: At the State Department, we now have a pliant Secretary who in the past has clearly stated his support for the first torture program, like President Trump. We have a Justice Department that is constantly under siege from a White House that clearly has a “loyalty test” it tries to impose on those working there. And we have a previous manager of America’s first torture program teed up to lead the federal agency that ran that same program. The conditions are certainly ripe for a Torture Redux. The question now is whether the Senate recognizes the danger and will act accordingly. We will know soon enough.

During Trump’s surprising presidential campaign, pundits became fond of pointing out that Trump’s supporters took his often-shocking rhetoric seriously, but not literally, whereas his opponents took his rhetoric literally, but not seriously. Today, however, it is obvious that one should take Trump’s words both seriously and literally. In his first month Trump has been busy matching actions to words, temporarily banning immigration from seven Muslim-majority nations and ordering sanctuary cities to detain illegal immigrants, launching work on the U.S.-Mexican border wall, and preparing to lift the ban on the CIA black sites where the United States carried out “enhanced interrogation techniques.”

For those who voted for Trump this first month must surely be a heady viewing experience. For much of the country, however, Trump’s efforts are taking things in the wrong direction, as even his most extreme campaign proposals become reality. From the perspective of the polls, Trump’s first month has met decidedly mixed reviews.

On immigration, for example, Trump signed a short-lived executive order threatening to halt federal funding to so-called “sanctuary cities” that offer protection to illegal immigrants if they do not detain illegal immigrants and turn them over to federal authorities. And before signing two executive orders directing the construction of the U.S.-Mexican border wall, Trump argued that the United States is “in the middle of a crisis border” and that “A nation without borders is not a nation.”

Most Americans see things differently. When asked about illegal immigrants currently living in the United States, a CBS News Poll this month found that 74% of the public thinks they should be allowed to stay, while just 22% thinks they should be required to leave. 61% believe illegal immigrants should eventually be allowed to apply for citizenship. The same poll found that 59% oppose Trump’s plan to build a wall along the U.S.-Mexico border, with 37% favoring it.

Proponents of foreign military intervention in Libya argued that giving air support to rebels there would spread liberalism and save Libyan lives. But the success of that revolution has thus far delivered political chaos destructive to both ends. That result is worth noting as backers of the Libya intervention offer it as a model for aiding Syrian rebels in the name of similargoals.

Advocates of both interventions underestimate coercion’s contribution to political order. Autocratic rule in these countries is partially a consequence of state weakness—the absence of strong liberal norms, government institutions, and nationalism. By helping to remove the levers of coercion in places like Libya and Syria, we risk producing anarchy—continual civil war or long-lived violent disorder. Either outcome would likely worsen suffering through widespread murder, a collapse of sanitation and health services, and stunted economic growth conducive to well-being. And the most promising paths to new of forms of unity and order in these states are illiberal: religious rule, war, or new autocrats. The humanitarian and liberal cases for these interventions are unconvincing.

Aside from Qaddafi’s fall, U.S. leaders gave three primary rationales for military intervention Libya (Irepeatedlycriticizedthemlastspring). One was toshow other dictators that the international community would not tolerate the violent suppression of dissenters. That reverse domino theory has obviously failed. If Qaddafi’s fate taught neighboring leaders like Bashar al-Assad anything, it is to brutally nip opposition movements in the bud before they coalesce, attract foreign arms and air support, and kill you, or, if you’re lucky, ship you off to the Hague.

The second rationale was the establishment of liberal democracy. But Libya, like Syria, lacks the traditionalbuildingblocks of liberal democracy. And history suggests that foreign military intervention impedes democratization. Whether or not it manages to hold elections, Libya seems unlikely to become a truly liberal state any time soon. As with Syria, any path to that outcome is likely to be long and bloody.

Meanwhile, Libya’s revolution has destabilized Mali. Qaddafi’s fall pushed hundreds of Tuareg tribesmen that fought on his side back to their native Mali, where they promptly reignited an old insurgency. Malian military officers, citing their government’s insufficient vigor against the rebels, mounted a coup, overthrowing democracy that had lasted over twenty years. Thus far, the military intervention in Libya has reduced the number of democracies by one.

The most widely cited rationale for helping Libya’s rebels was tosavecivilians from the regime. Along with manycommentators, President Obama and his aides insisted that Qaddafi promised to slaughter civilians in towns that his forces were poised to retake last March. Thus, intervention saved hundreds of thousands of lives. A minor problem with this claim is that Qaddafi’s speeches actually threatened rebel fighters, not civilians, and he explicitly exempted those rebels that put down arms. More importantly, if Qaddafi intended to massacre civilians, his forces had ample opportunity to do it. They didcommitwar crimes, using force indiscriminately and executing and torturing prisoners. But the sort of wholesale slaughter that the Obama administration warned of did not occur—maybe because the regime’s forces lacked the organization needed for systematic slaughter.

The limited nature of the regime’s brutality does not itself invalidate humanitarian concerns. It might be worthwhile to stop even a historically mild suppression of rebellion if the cost of doing so is low enough. The trouble with the humanitarian argument for intervention in Libya is instead that the intervention and the chaos it produced may ultimately cause more suffering than the atrocities it prevented. Libya’s rebel leaders have thus far failed to resurrect central authority. Hundreds of militias police cities and occasionally battle. There are manycrediblereports that militias have unlawfully detained thousands of regime supporters, executed others, driven mistrusted communities from their homes, and engaged in widespread torture.

The looting of Libya’s weapons stockpiles is also likely to contribute to Libya’s misery, in part by arming the militias that obstruct central authority. The weapons depots reportedly included thousands of man-portable air-defense systems (MANPADS), some of which may still work. It is worth noting that the widely-reported claim that Libya lost 20,000 MANPADS appears exaggerated. That figure comes from Senate testimony last spring by the head of Africa Command, who did not substantiate it (my two requests to Africa’s Command PR people for information on this claim were ignored). A State Department official recently gave the same figure before essentially admitting that we have no idea what the right figure is.

No one can say with certainty whether Libya’s anarchy will produce more suffering than a Qaddafi victory would have. But that argument is plausible. Autocracies tend to serve human well-being better than chaos. That does not make it inherently immoral to help overthrow despots. It simply suggests that such interventions, whether or not they are moral or wise, do not deserve the adjective “humanitarian.”

The same goes for Syria. One need not support its brutal rulers to agree that their fall, like Gaddafi’s, is likely to produce extended illiberal chaos or another set of autocrats. I don’t know what the right U.S. policy is toward the crisis in Syria. But I doubt any policy exists that can avoid sacrificing one of our hopes for another.

Former Vice President Dick Cheney appeared at AEI today to promote his book and again made the claim that waterboarding detainees is not torture because we use this technique on our own troops. As he put it:

“Another key point that needs to be made was that the techniques that we used were all previously used on Americans,” Cheney went on. “All of them were used in training for a lot of our own specialists in the military. So there wasn’t any technique that we used on any al Qaeda individual that hadn’t been used on our own troops first, just to give you some idea whether or not we were ‘torturing’ the people we captured.”

This isn’t a new argument. Plentyofotherfolks have argued that, because we subject members of the military to waterboarding in Survival, Evasion, Resistance, and Escape (SERE) School (the military’s POW prep course), waterboarding detainees is not mistreatment.

It’s also a nonsensical argument.

The difference is consent. What one person consents to in one set of conditions does not make the same treatment, without consent and in other conditions, somehow less invasive or less illegal under domestic and international law. I was not waterboarded when I attended SERE school, but I endured treatment I wouldn’t willingly accept in other circumstances. If you want to waterboard me, you’d best be ready for a fight.

Export Cheney’s logic to sex. Consenting adults have sex and it’s legal, enjoyable, and essential to the survival of the species. If you accept the premise that, because you can have sex with someone with consent, it is always legal and moral to have sex with others, you’ve just declared that rape is not a crime.

Setting aside the issue of consent, waterboarding was clearly recognized as a criminal act by the laws of war and domestic statute well before we interrogated KSM. We prosecuted our own soldiers for using controlled drowning (the “water cure” and waterboarding) in the Spanish-American War and in Vietnam. We prosecuted Japanese soldiers for using waterboarding after World War II. We prosecuted a sheriff in Texas for waterboarding confessions out of prisoners.

I wrote a piece for the Los Angeles Times a few months back spelling out how Cheney isn’t arguing with Obama here. He’s reliving a battle he lost within the Bush administration:

The legal framework underlying waterboarding collapsed during President George W. Bush’s tenure. The White House Office of Legal Counsel in 2004 withdrew the memoranda that authorized waterboarding. The Detainee Treatment Act of 2005, sponsored by former POW and torture victim Sen. John McCain (R-Ariz.), barred “cruel, inhuman, and degrading” treatment of any detainee in military custody. There may be an argument that waterboarding isn’t torture, but there’s no argument that it’s not cruel, inhuman and degrading…

The Supreme Court put the nail in the coffin with its Hamdan vs. Rumsfeld decision in 2006. The real import of the ruling was not that Congress had to authorize military commissions (it quickly did) but that the Geneva Conventions apply to the armed conflict with Al Qaeda. The application of the laws of war, which allow broad power to kill your enemy but provide no authority to mistreat him, brought down the legal house of cards that authorized coercive interrogation. Bush issued an executive order the next year that banned the bulk of enhanced interrogation techniques. Obama followed suit with his own order applying stricter military standards to the intelligence community.

I have an article in today’s Los Angeles Times pointing out that waterboarding is dead as a tool for U.S. interrogators. So get over it. I also make the point that it died under Bush’s watch, so the next time Dick Cheney trots out a proposal to bring back waterboarding, he’s quarreling mostly with his old boss and not the current commander-in-chief. Over at the Washington Post, Allen McDuffee thinks this is unfair:

It may well be the case that Cheney has unfinished business with Bush over dropping the so-called enhanced interrogation techniques, but it is at least a selective reading for Rittgers to suggest that Cheney’s words are not directed at Obama with the hope that they carry political consequences for the administration. It is unlikely that even Cheney himself would make such a suggestion.

Of course Cheney’s comments are directed at Obama, as a rearguard action intended to make it politically impossible to prosecute those that made waterboarding and other coercive interrogation techniques our policy. Mission accomplished.

Waterboarding died in 2004 when the Office of Legal Counsel withdrew the memoranda supporting it, with other nails in the coffin provided by the Detainee Treatment Act and the Hamdan decision. Bush didn’t make these changes by himself. The OLC withdrawal was Jack Goldsmith’s doing, and a signing statement on the DTA showed Bush’s reluctance to accept limits on his power. But accept them he did. On the same day that Bush issued an executive order finessing the Geneva Conventions Common Article 3 as applied to the CIA, his OLC issued legal advice on what enhanced interrogation techniques are still on the table. It’s no human rights wishlist (sleep deprivation, reduced calorie diet, and four slapping/holding techniques), but waterboarding is nowhere to be found.

Yes, Obama restricted the intelligence community to the Army Field Manual. Waterboarding was long gone by that point. It has been resurrected as a talking point in defiance of legal reality, good policy, and core principles, but will not and should not be American policy. Again, get over it.